## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

People v . English , 2011 IL App (3d) 100764

Appellate Court Caption TH E PEO PLE OF THE STATE OF I LL INOI S, Plaintiff-Appellee, v. SCOTT F. E

NGLI SH, Defe ndant-A ppellant

.

District & No. Third District Docket No. 3–10–0764

Filed Rehearing denied June 27, 2011 July 29, 2011

Held ( N ote: This s yllabu s constitutes no part

of the opinion of the court but has been prepared by th e Reporter of Decisionsfor the conv en ience of the reader. ) Consideration of defendant’s postconviction claim that his conviction for aggravated batter

y of a chil d could

not serve as the pr edicate forcible felony to support his conviction for felony murde r w as ba rred by the doctrine of res judic

ata , since defendant could have raised that

issue in his direct appeal, but hedid not, and consideration of defenda nt’s claim that his appellate counsel was ineffective in failing to raise the issue in d efendant’s direct a

ppeal wa s barre d on the g round tha t defend ant’ s claim was raised for the first time in his reply brief.

Decision Under Review Appeal fr om th e C ir cu it Co ur t o f H en ry C oun ty, No. 95–CF–305; the Hon. C harles H. St engel, Judge , pres idin g.

Judgment Affirmed.-2-

Counsel on Appeal Kerry J. Bryson (arg

ued), of S tate Appellate Defender’s Office , of Ottawa, for appe

llant.

TerenceM. Patton, State’s Attorney , of Cambridge (Terry A. Mertel and Gary F . Gnidovec ( argue d), both of State’s A

ttorney s Appella

te Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE SCHMIDT delivered the

judgment of the court, with opinion. Presiding Justice Carter and Justice Wright concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Scott English, appeals the dismissal of his postconviction petition. Following

a hearing on the State’s motion to dismiss, the trial court found the doctrine of res judic ata barred consideration of def

endant ’s claims . Defendant asse rts the tr ial cour t erred in dismissing his petition as the acts constituting his felony murder c onviction arose from and were inh erent in the under

lying felon

y of aggr avated b attery

of a chil d. We aff

irm.

¶ 2 FACTS ¶ 3 As this court ha s previou sly consider ed this mat

ter in People v. English , No. 3–96–0767 (2000) (unpublished order under Supreme Court

Rule 23) ( English I

), and People v. English
, 381 Ill. App. 3d 906 (2008) ( English II ), and the facts are well known to the parties, we will only briefly

recite the facts of the case. ¶ 4 In October of 1995, the State charged defendant in the death of three- ye ar-old Jam

i Sue Pollock. Origina

lly, the Sta

te c harge d defend ant with f irst deg ree mur der (720 IL CS 5/9–1(a)(2) (West 1996)), first degree felony murder predicated

on the felony of

aggravated battery of a child (720 IL CS 5/9–1(a)(3) (West 1996)), and aggr avated battery

of a child (720 IL CS 5/12–4.3(a) (West 1996)). Evidence adduced at trial showed Jam i had 10 separa te bruises on her body

when b rought into the em ergency roo m. The bruis es app eared t o range between one week and one day old. Defendant

admitted to the polic e that he struck Jami

a number of times as routine measures of discipline on thenight she was found unresponsive, but could not tell exactly w here on h er body he struck her as s he was bu ndled in bl ankets. ¶ 5 A for en si c p at ho lo gi st te st if ie d t ha t, du ri ng th e a ut op sy, sh e fou nd “m an y, m an y, ma ny” bruises and “many, ma

ny injuries” on

Jami’s body. Jami’s face was pale a nd bruised, as if she “either had

something

pressed agains t her fa

ce or he r face pressed agains tsomething.” Jami had fingernail scratches on her chest that appeared self-inflicted a s she tried “to scratch-3-

or scrape or claw something away.” Jami had an eight-centimeter bruise on the back of her headand “ma ssive” h emorrhaging benea th her scalp caused by

“heavy , rapid or massive” force to Jami’s head. ¶ 6 According to th e path ologi st, J ami’s inju ries w ere inc onsi stent with being strucka s described by d efenda nt or wra pped too ti ghtly

in a blank

et. The pathologist attributed Jami’s death to blunt force injuries to her he ad and chest, and asphy xia, either of which would have caused death. ¶ 7 At the close of trial, the circuit court granted the

State’s motion to dismi ss the fir st degree murder charge. Over defe

nse counsel’s objection, the circuit court refused to instruct the jury

on the offe

nse of inv oluntary

manslaug

hter. The jury found defendant

guilty on the charges of felony murder a

nd agg ravate d batter

y of a chil d. The circuit court then sentenced defendant to natural life. ¶ 8 In English I , this cour t held “the circu

it court di d not abuse

its discre tion when it did not instruct the juryon involuntary manslaug hter.” English I , slip op. at 11. In reaching that conclusion, the English I court noted that the t

rial c ourt instr

ucted the jury on both reckle ssness and knowing conduct and stated that, “The evidence in this case shows that English acted w ith intent to cause great bodily harm. The jury f

ound English guilty of aggravated

battery of a ch il d an d, t her efo re, th at h e ac ted in ten ti ona ll y or k now in gly. Itcould
notalso have found that

he ac te d r ec kl es sl y. C on se qu en tl y, the jury found English guilty of felony murder. Had the ju

ry found th at E nglish merely acted recklessly , it should have acquittedhim of ag gravated battery of a

child and could not have convicted him of felony murder.” English I , slip op. at 11. ¶ 9 As the statute under which thecircuit court imposed defendant’s life sentence wasfound
to vio late the single subject clause (see People v. Woo ters , 188 Ill. 2d 500 (1999)), we vacated defendant’s life sentenc e on direct appeal in English I and remanded for further proceedings. English I , slip op. at 12. ¶ 10 In 1999, during the pendenc y of defendant ’s direct appeal, he filed a postconviction
pe titio n, which he later voluntarily dismissed on August 6, 2003. Then, in 2004, he filed another postconviction petition. The trial court treated the 2004 peti tion as a successive petition and dismissed it on May 24, 2004, p

ursuant t o the State’s motion. Defendant then filed a motion to reinstate his original 1999 petition. By order entered September 26, 2005, the trial court denied defendant’s motion to reinstate and defe ndant, again, appealed to this
court. ¶ 11 In English II, this court held it had no jurisdiction to consider the dismissal of defendant’s 2004 postconviction petition as the trial court dismissed that petition on May 24, 2004, and defendant failed to file a timely notice of appeal. Engli s h II

, 381 Ill. App. 3d at 909. However, the English II court not ed that de fendant did, in fa ct, file a timely notice of

appeal after denial of his motion to

reinstate his 1999 petition. In addressing that matter, the English II court held the trial court erred in deny ing defendant’s motion to reinstate his 1999 petition. English II , 381 Ill. App. 3d at 910. The cour t noted tha

t defend ant volunt

arily dismissed h

is 1999 petition on August 6, 2003, and moved to reinstate the petition on August 5, 2004. As postconviction procee dings are c ivil in nature, the English II court found that pu

rsuant to-4-

section 13–217 of the Code of Civil Procedure (735 IL CS 5/13–217 (West 2004)), defendant had one yea

r to refile or reinstate his voluntarily dismissed petition. English II, 381 Ill. App. 3d at 910. As such, the English II court reversed the trial court’s denial of de fendant’s motion
to reinstate his original petition and remanded “the cause to allow the trial court to reinsta te the origina

l postconviction pe

tition, with

amen dments, and treat it as an initial petition.” English II, 381 Ill. App. 3d at 910. ¶ 12 On remand, defendant filed an amended petition, arguing that his felony mur de r conviction based on the predicate felony of aggr avated battery

of a child must be vacated because the acts constituting aggravated batter y of a child ar

ose from and were inherent in the killing of the child. The State filed an answer and motion to dismiss in which it argued that the doctrine of res judicata barred defendant’s claims and that the authorities cited by defendant to support his conclusions were distinguishable from the ca se at bar. ¶ 13 A hearing took place on September 29, 2010, after which the trial court “denied” defendant’s “amended petition for postconviction relief.” This appeal followed.

¶ 14 ANA LYSIS ¶ 15 The trial court’s denial of defendant’s petition took place after a third -stage hearin g. Our
supreme court ha s consiste

ntly maintained that at su ch a hea rin g, “the bur den is on the defendan t to make a substantial showing of a deprivation of constitutional rights and the circui tcourt’s decision will not be disturbed unless it is manifestly er roneous.” Peoplev

. Coleman
, 206 I

ll. 2d 261, 277 (2002) . “The te rm ‘manif est erro r’ mean s error

that is ‘c learly evident, plain and indisputable.’ ” Coleman , 206 Ill. 2d at 277 (quoting People v. Ruiz , 177 Ill. 2d 368, 384-85 (1997)). ¶ 16 Citing People v. Morgan , 197 I ll. 2d 404 (20 01), and People v . Pelt , 207 Ill. 2d 434 (2003), defendant alleged in his amended petition that the acts constituting the aggravated battery of a chil d arose from and were inherent in the kill ing of t he chi ld. Gi ven th e hold ings of those cases, defendant

maintains on appeal that the trial court erred by denying his petition and fa il in g t o v ac at e h is co nv ic ti on fo r f el on y m ur der based on the predicate felony of aggravated batter

y of a child. ¶ 17 The State ass erts that defenda nt’s claim is barred by the doctrine of res judic ata or procedurally

defaulted. We agree. Our supre me court has consistently he ld: “Postconviction claims are limited to those claims that were not and could not have been previous ly

adjudica ted on dir ect appe al. [Citatio n.] Claims that were raised and decided

on di re ct ap pe al ar e b ar re d b y res judicata and those claims that could have been raised, butwere not, are considered waive d.” People v. Sanders , 238 Ill. 2d 391, 398 (2010) (citi ng People v. Towns
, 182 Ill. 2d 491, 502-03 (1998)). See also People v. Petrenko , 237 I ll. 2d 490, 4 99 (2010) (“A postc onviction procee ding is
notan appeal from

the judgment of conviction, but is a collateral attack on the trial cour t procee dings. [Citation.] Consequently, issues that could have been raised on di rect app eal butwere not are forfeited . [Citation.] Here, defendant’s claim concerning trial counsel’s failure to contes t the valid ity o f the sea

rch war rant is ba sed entir

ely on factscontainedin the trial court r

e cord. That claim therefore could have been raised on direct appeal, and-5-

defendant’s failure

to do so re sults in its f

orfeitur e.”); People v. We st , 1 87 Ill. 2d 418, 425 (1999) (“A post-conviction action is a collateral attack on a prior conviction and sentence. [Citations.] *** The scope of the proceeding is limited to constitutional matters that

neither have been, nor could not have been , previou sl y adjudicated. A ny issues which could have been raised on direct appeal, but were not, are procedurally

defaulted [citation], and any issues which ha

ve previ ously

been decided by

a reviewing court are ba

rred by the

doctrine of res judic

ata [citation].” ); People v. Wins ett , 15 3 Ill. 2 d 335, 346 ( 1992) (“ It is w ell established that the scope of post-conviction review is lim ited to constitutional matters which have not been, and could not have been, previously adjudicated.”). ¶ 18 The claim raised in defendant’s postcon viction petition, that hi s felony murder conviction is improper

as it is bas ed on ac ts constitu ting the underly ing pre dicate

felony of aggravated battery of a child, is based entirely on ma tt er s c on ta in ed wi th in th e t ri al re co rd . U nd ou bt ed ly, defendant could have raised this issue in the direct appealhe filed in 1996. The question of whether an aggravated ba

ttery that resulted in dea

th coul d serv e as the p

redica te felon y to sustain a felony murde

r conviction was not a new or novel concept in 1996. See People v. Viser
, 62 Ill . 2d 568 (1 975); People v. Thurman , 223 Ill. App. 3d 196, 202 (1991) (“Defendant

argues t hat a ch arge of f elony mur der can not b e based on aggr avated ba tt er y. Becau se every mur

der involves an aggrava

ted battery, de

f en dant argues that every

murder could be charged as felony

murder ***.”); People v. Bennet t , 222 Ill. App. 3d 188 (1991); People v. Szerletich , 86 Ill. App. 3d 1121 (1980). ¶ 19 The fact that cases decided afte r defenda nt’s dire ct appea

l added a uthority to the long line of cases discussing felony

murder, and specifically discussing aggrava

t ed battery

as the predica te felony that serve s as the basis for a felony murder conviction, in no way precluded defendant from raising the issue he

raised for thefirst time in his postconviction petition. See Peoplev. Leason , 352 Ill. App. 3d 450, 454 (2004) (“[T]he lack of precedent for a position differs from ‘cause’ for fa iling to raise an issue, and a defendant must raise the issue, even when the law isagains thim, to pre serve it f or revie w.”); People v. Purnell , 356 Ill. App. 3d 524 (2005) (citing the proposition quoted in Leason with approval). ¶ 20 We find defendant could have raised the issue of whether his conviction for aggravated battery of a child pr operly served as the predicate forcible f elony to support his felony murder conviction on direct appeal. He did not. As such, consideration of that issue is barred by the doctrine of res judic

ata

. ¶ 21 In his reply

brief, defendant raises the issue of ineffective a ssistance of appella te counsel for the first time. He asserts that if we found, as we have, that his cl aim is forfeited or barred by the doctrine of res judic

ata , then we must also f

ind his app ellate c ounsel co nstitutiona lly ineffective for not previously raising the claim. We disagree. ¶ 22 Almost

a century ago, our supreme court noted, “U nder the rul es of this court and its long[-]settled practic e, questi ons not ra ised by appella nts in the o

rig inal brie f cannot be raisedin the reply brief

. A contrary

practice would per

mit appell ants to ar

gue que stions in their reply brief

s as to which counsel for appellees would have n o opport un it y to re pl y. Th[ese] question[s] therefore need not be conside red.” Holliday v. Shephe rd , 269 Ill. 429, 436 (1915); see also People v. Lindse y , 72 I ll. App. 3d

764, 776 ( 1979); Illinois Health-6-

Maintenance Organization Guaranty Ass’n v. Department of Insurance , 372 Ill. App. 3d 24 (2007); People e

x rel. Village of Ve rnon Hills v. Village o f Lincolnsh ire , 283 Ill. App. 3d 266 (1996). ¶ 23 As defendant raised the issue of ineffective assistance of appellate cou nsel for the first time in his reply brief, it need not be consi dered. M oreover , defend ant’s cla im that his direct appellate counsel’s performance w as constitutionally ineffective for failing to raise Pelt or Morgan has no merit. ¶ 24 In People v. Viser , 62 Ill. 2d 568 (1975), the defendant argue d that an aggravated battery of jumping on a police officer’s chest “cannot be the underly ing felony

in a felony murde

r charge where the aggr

avated battery

is alleged to have been com mitte d against the person who eventua

lly d ies.” (I nternal quota t ion marks omitted.) Viser , 62 Ill. 2d at 577. Our
supreme court disagreed and clear ly held that ag gravated ba tt er y c an properly

serve as the predica te felony to sufficiently

support a felony murder

conviction. Viser , 62 Ill. 2d at 586- 87. The Viser court noted: “[W]e are not c oncerned with

whether the General

Assembly , in estab lishing th e offen se of felony murder , intended to deter the cr im in al fr om th e c om mi ss io n o f r ap e, or ro bb er y,

or burglary , but not to deter him from the violent assault that accompanies each of those offense s. That kind of

fragmentation of legislative purpose cannot survive the forthright characterization

of aggravated ba

ttery as one of

the forcible feloni es that wi l l trigger a charge of felony murde

r. What was intendedwas to deter the commission of any of the enumerated

forcible felonies, including agg rav a ted battery, by

holding the perpetrator responsible for murder if death results.” Viser , 62 Ill. 2d at 580. ¶ 25 When defenda nt filed hi s direct a

ppeal, in 1996, Viser

stood as the law of the land and

as such we fail to se e how app ellate c ounsel co uldhave be en ineff

ective f or failing to rai se the 2001 case of Morgan or 2003 case of Pelt when filing the 1 996 appe al. ¶ 26 While we acknowledge Morgan and Pelt somewhat

depart from the holding in Viser
, it is clear our supre

me court firmly stands be

hind the st

ateme nts it made in Viser

. Approximat

ely six years after Pelt , our supreme court unequivocally noted that “f

e lony murder pre dicat ed on aggravated ba ttery is a leg ally existent crime in I llinois.” People v. Davis
, 233 Ill. 2d 244, 268 (2009). The Daviscourt we nt on to note

that our s upreme

court in Viser “held that felony mur

d er predicated on aggr

avated battery

is a valid and existing crime” in Illinois and t

hat “ Viser has never been

overruled by

this court, and was essentia lly reaffirmed by

our most recent decision in this area in People v. Davis , 213 Ill. 2d 459, 475 (2004).” ¶ 27 Again, as defendant has raised his ineffective assistanc e of appe

llate cou nsel cla imfor the first time

in his rep ly b

rief, we need not a

ddress th e issue. Were w e to addr ess it, however , we would

find it is wi

thout meri

t.

¶ 28 CONCLUSION ¶ 29 For the foregoing r easons, the order of the circuit court of He nry County

is affirmed. ¶ 30 Affirmed.-7-